Burgess and Secretary, Department of Employment and Workplace Relations
[2006] AATA 581
•3 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 581
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/785
GENERAL ADMINISTRATIVE DIVISION )
Re GARRY BURGESS Applicant
And
SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONSRespondent
DECISION
Tribunal Mr RG Kenny, Member
Dr M Denovan, MemberDate3 July 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]...........................
R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – relevant time-frame for qualification – certain conditions not permanent in the relevant time-frame - physical impairment – impairment rating less than 20 points.
Social Security Act 1991 ss 94(1)
Social Security (Administration) Act 1999 cl 4 sch 2,Secretary Department of Social Security v Murphy (1998) 52 ALD 268
REASONS FOR DECISION
3 July 2006 Mr RG Kenny, Member
Dr M Denovan Member
Background
1. On 30 May 2005, Garry Burgess (the Applicant) contacted a customer service officer at Centrelink and inquired about payment of disability support pension, a form of income support which is payable in accordance with the terms of the Social Security Act 1991 (the Act). He followed this up with a formal claim on 6 June 2005. Therein, he referred to the following conditions as constituting the basis of his claim: “arthritis in shoulders, neck, spine and knees”;”gout in wrist and feet”; “high blood pressure”; “discs in the upper and a low back also causing problems”. On 22 July 2005, a Centrelink delegate rejected his claim. On 26 September 2005, that decision was affirmed by an authorised review officer. On 22 November 2005, the decision was then affirmed by the Social Security Appeals Tribunal. On 2 December 2005, Mr Burgess sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. Mr Burgess attended the hearing but was not represented. The Secretary, Department of Employment and Workplace Relations (the Respondent) was represented by Ms J Forsyth. In evidence were the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Issues and Legislation
3. The requirements for payment of the disability support pension are set out in subsection 94(1) of the Act which, in so far as relevant, reads:
“Qualification for disability support pension
94(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) …………..; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) ………….; or
(iii) ……………..”
4. All of those requirements must be met. It is not disputed, and the Tribunal is satisfied, that Mr Burgess meets the age and residential requirements of that provision. What remains to be determined is whether he has an intellectual, physical or psychiatric impairment and whether the threshold of 20 points under the impairment tables is satisfied. In accordance with the terms of schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), the qualifying criteria must be met on the date of Mr Burgess’ initial inquiry to Centrelink or within 13 weeks of that date. It is common ground that the 13 week period runs from 30 May 2005 until 29 August 2005. In the event that those requirements are met, the Tribunal will need to determine whether, during that time, he had a continuing inability to work because of the impairment. For continuing inability to work, the relevant parts of section 94 of the Act read:
“94(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b)either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b) if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.
94(4)…………...
94(5) In this section:
educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
work means work:
(a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.”
Medical Evidence
5. The medical evidence in this matter comprises reports from Mr Burgess’s treating medical practitioner, Dr R Hamish; from Dr C Varughese who is in the same practice as Dr Hamish; and from Dr S Goode, specialist in occupational medicine. Also in evidence was a report from rehabilitation consultant, Ms S Fortuin.
6. On 1 June 2005, Dr Varughese completed the report which formed part of Mr Burgess’ initial claim. Therein, he diagnosed cervical, thoracic and lumbar spondylosis. He described these as being characterised by pain and as being treated by non-steroidal anti-inflammatory drugs, analgesics and physiotherapy. He also diagnosed hypertension and anxiety/depression but noted that these conditions were expected to improve significantly and had no major impact at that time.
7. Dr Hashim completed several reports. On 26 July 2005, he stated that Mr Burgess suffers from a shoulder disorder for which he had been seen by the orthopaedic team at the Gold Coast hospital. Dr Hashim said that an ultrasound scan had been performed which suggested muscle/tendon impingement in relation to which he was offered a surgical procedure to rectify the problem.
8. In a report, dated 10 November 2005, Dr Hashim advised that he had consulted Tables 5.1 and 5.2 of the impairment tables, respectively, for cervical spine and thoraco-lumbar spine. He recommended a rating of ten points from each of those tables. However, in a subsequent report, dated 21 March 2006, he described the loss of one quarter of normal range of movement in each component of the spine and considered that the appropriate impairment ratings were five points in each case. Dr Hashim also referred to hypertension, noting that it was difficult to control and warranted an impairment rating under Table 20 of the impairment tables of 10 points.
9. Dr Goode completed a report, dated 4 April 2005, where he confirmed that Mr Burgess suffers from cervical, lumbar and thoracic spondylosis which he described as being moderate in severity. He also made reference to bilateral rotator cuff tendonitis but noted that there was a full range of movement in the shoulders with no tenderness in the rotator cuffs. Dr Goode described mild bilateral knee osteoarthritis but said that there was no evidence of any significant ligamentous or cartilaginous insufficiency. In addition, he noted the reference in various reports to depression/anxiety but expressed the opinion that Mr Burgess was not suffering from any major psychiatric condition at that time.
10. Dr Goode also reported on Mr Burgess’ capacity to undertake work. He said that he was prevented from working in positions which involved heavy lifting, repetitive bending, work above shoulder height, whole body vibration, crouching, squatting, kneeling or mobilising for long periods but said that, within those limitations, he could work. Nonetheless, he also said that Mr Burgess did not have the aptitude, education, qualifications, training or experience to facilitate redeployment to other suitable work and opined that it was unlikely that he would be able to find work in the future. In reports dated 10 November 2005, 21 March 2006, 28 March 2006, and 10 April 2006, Dr Hashim expressed opinions in line with those of Dr Goode. In contrast, Ms Fortuin, in her report dated 5 July 2005, advised that Mr Burgess was then able to work for some 8 to 14 hours per week in occupations such as light courier driver, ticket seller, cashier, car park attendant or usher and that this would increase to 30 hours per week in 6 to 24 months.
Mr Burgess’ Evidence and Submissions
11. Mr Burgess lives by himself in a duplex. His sister occupies the other part of the complex. He assumes responsibility for his daily activities such as cooking, light cleaning and shopping and continues to drive his car. He spends much of his time talking with his sister and watches television for three or four hours each day. He suffers pain in his left knee and in his shoulders when he undertakes activities around the house such as mowing or heavy cleaning. He advised that, since about Christmas 2005, he has engaged the services of other people to carry out these tasks and that, when he doesn’t use his limbs, the pain settles. He agreed that surgical intervention had been recommended for his shoulder condition but he said that, at the time, a successful outcome could not be guaranteed and so he decided not to proceed with that option.
12. Mr Burgess experiences pain in his back and takes anti-inflammatory analgesics to ease those symptoms. He also suffers from anxiety/depression for which he has been receiving medication for approximately one month before the hearing. Nevertheless, he believed that he had experienced symptoms of this condition for some years but he said that these had worsened in recent times. He believed that, in part, this was due to the stress that he was feeling because of the way that Centrelink was dealing with his claim. Mr Burgess also suffers from hypertension for which he had been receiving medication for about one month prior to the hearing. He said this had been of assistance and that, on the last two occasions of visiting his local doctor, the condition had stabilised.
13. Mr Burgess worked as a cleaner at a high school on the Gold Coast for 12 years until September 2004 when he ceased because of his health problems. He said that he would not be able to undertake any form of employment and considered that he had now retired from the workforce. In that regard, he submitted that the opinion of Dr Goode should be adopted and that he should be paid the pension he is claiming.
Respondent’s Submission
14. Ms Forsyth submitted that the physical impairment of potential relevance in Mr Burgess’s case was related only to his spinal conditions. She submitted that no rating could be assigned for the other conditions referred to in the evidence because they were not permanent within the 13 week period from when the claim for disability support pension inquiry was made by Mr Burgess. For the back condition, Ms Forsyth submitted that the appropriate tables in schedule 1B of the Act were Table 5.1 for cervical spondylosis and Table 5.2 for thoraco-lumbar spondylosis and that the relevant rating in Mr Burgess’ case was 5 points from each of those tables. As this was less than 20 points, she submitted that section 94 of the Act was not satisfied. She also submitted that reliance should be placed on the report of Ms Fortuin in relation to Mr Burgess’ capacity to undertake work.
Consideration
15. Schedule 1B of the Act contains the impairment tables. It includes an introduction which sets out the methodology for applying the various tables and this includes a requirement that, for a rating to be assigned, the condition under consideration must be “permanent” in the sense that it is a “a fully documented, diagnosed condition which has been investigated, treated and stabilised”: see Secretary Department of Social Security v Murphy (1998) 52 ALD 268 at 271 (per Drummond J). In addition, as noted above, these characteristics must be attributable to the condition being assessed within the period from 30 May until 29 August 2005.
16. The Tribunal accepts as correct the submission of Ms Forsyth concerning Mr Burgess’ hypertension and anxiety/depression. For each condition, treatment was commenced only in April or May 2006. For that reason, the Tribunal is satisfied that they were not investigated, treated and stabilised and, therefore, not permanent, in the period before 29 August 2005. The Tribunal is also satisfied that this is the case with his shoulder condition. During that period, further treatment was recommended and this has not been undertaken.
17. The Tribunal is satisfied that Mr Burgess has a physical impairment in the form of cervical and thoraco-lumbar spondylosis. The relevant impairment tables read:
TABLE 5.1 CERVICAL SPINE
Rating Criteria nil normal or nearly normal range of movement five loss of quarter of normal range of movement ten loss of half of normal range of movement and frequent/constant neck pain
or
loss of three-quarters of normal range of movement with infrequent neck paintwenty loss of three-quarters of normal range of movement and constant neck pain thirty loss of almost all movement, or complete ankylosis in position of function forty ankylosis in an unfavourable position, or unstable joint
TABLE 5.2 THORACO—LUMBAR-SACRAL SPINE
Rating Criteria nil normal or nearly normal range of movement five loss of one-quarter of normal range of movement ten loss of one-quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.or
loss of half of normal range of movement.twenty loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.or
loss of three-quarters of normal range of movement.forty ankylosis in an unfavourable position or unstable joint
18. Dr Hashim described Mr Burgess’ spinal conditions as demonstrating one quarter loss of normal range of movement and advised that the appropriate impairment ratings under each of the tables above was 5 points. The Tribunal accepts his evidence in that regard. This means that the threshold of 20 points required to satisfy subsection 94(1) of the Act is not met by Mr Burgess.
19. There is conflicting evidence before the Tribunal in relation to Mr Burgess’ ability, during the relevant time-frame from 30 May until 29 August 2005, to undertake work or to undertake educational, vocational or on-the-job training. The Tribunal makes no finding on that aspect of Mr Burgess’ case because, as noted above, all elements of subsection 94(1) of the Act must be satisfied. As the threshold of 20 points was not met by Mr Burgess at the relevant time, he does not qualify for the disability support pension.
Decision
20. The Tribunal affirms the decision under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member and Dr M Denovan, Member
Signed: J Mills, Legal Research Officer
Date/s of Hearing 8 June 2006
Date of Decision 3 July 2006
The Applicant appeared in person
For the Respondent Ms J Forsyth, Departmental Advocate
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